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Ben M. v. State, Dept. of Health and Social Services, Office of Children's Services

Supreme Court of Alaska

April 3, 2009

BEN M., Appellant,

As Amended on Rehearing April 21, 2009.

Page 1014

[Copyrighted Material Omitted]

Page 1015

Dianne Olsen, Anchorage, for Appellant.

Megan R. Webb, Assistant Attorney General, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for Appellee.

Before : FABE, Chief Justice, EASTAUGH, CARPENETI, and WINFREE, Justices.




Ben M.[1] appeals the termination of his parental rights. Because the trial court did not abuse its discretion in denying the motion Ben made on the first day of trial to continue the trial, and because it was not error to find beyond a reasonable doubt that returning his daughter to his custody would likely cause her serious harm, or to find by clear and convincing evidence that the state made active efforts to provide services to reunify the family, we affirm the termination of Ben's parental rights.


A. Facts

Ben's daughter, Nicole, is an Indian child as defined in 25 U.S. C. § 1903(4), part of the Indian Child Welfare Act. Nicole was removed from her parents and declared a child in need of aid shortly after her birth on July 18, 2005, when she tested positive for cocaine. Nicole's mother, Robin, had previously tested positive for cocaine use during the pregnancy. Ben was incarcerated at the time. He was released from jail later in July, and in August he began taking parenting classes and visiting Nicole. He also underwent urinalysis testing to assure Office of Children's Services (OCS) that his problems with cocaine and alcohol had been addressed, and had consistently negative results for several months in fall 2005. Nicole began a trial home stay in September, with Ben agreeing to supervise contact between Nicole and Robin.

Ben and Robin stopped following their case plan and began missing urinalysis appointments in December 2005. The efforts of their caseworker Rebecca Morino to contact them met with little success. Eventually, Morino found the couple home for an unannounced visit in January 2006. The couple complied with Morino's request to take a cab to Worksafe, the entity performing the urinalysis tests, for a test that day. Ben's result was negative, but Robin's test was reported as suspect. Her specimen was out of temperature range and the report detailed other circumstances suggesting she may have been trying to falsify her result. Morino returned to the home accompanied by police officers to request that Robin leave the home. The couple yelled and gestured at her, and Ben approached her, leading an officer to step between them. The mother's

Page 1016

urinalysis retest eventually came back positive, and Worksafe reported a later incident with the mother's urinalysis that led OCS to conclude Ben knew she was still using: The Worksafe report stated that Ben was in the lobby for several hours while she was supposed to be undergoing testing and told the receptionist that she was not yet there, but she was actually in the lobby. OCS then learned that during the time when Ben and Robin were out of contact, Robin had been using cocaine and that Ben had been involved in Robin's suspicious urinalysis incident-suggesting he knew of her ongoing cocaine use. Further, OCS discovered that the Anchorage police had been called to the home for domestic disturbances in fall 2005, and that Ben had been incarcerated for two days during that time, apparently leaving Nicole unsupervised with her mother.

OCS removed the child from the home on January 11, 2006. During the removal, Ben was very angry and yelled at the social worker. On January 17, shortly after the child's removal, OCS called Ben about his inconsistent attendance at urinalysis screening and Ben responded, " [a]s soon as you removed [Nicole], all bets were off. I'm not doing anything." Ben did not show [up] for urinalysis tests set up biweekly from January 13, 2006 through February 17, 2006, when Morino's request for testing with Worksafe expired. He also ended contact with OCS.

In early February Ben was evicted from his home. On February 20 he was incarcerated again. He had visitation with Nicole one or two times a month during this incarceration and was released in August 2006. He had a few visits with Nicole and was again incarcerated in September 2006, briefly released, and then re-arrested on " escape status" from ankle monitoring. His whereabouts from November 2006 until March 2007 are unknown. A new caseworker, Heather Rough, located him in jail in April 2007. That period of incarceration lasted from March 2007 until August 2007.

Ben requested visitation when he was released, but Rough found him confrontational and difficult to work with. The parties reached a new visitation agreement in October 2007, but Ben did not visit Nicole from October 2007 through the trial in March 2008. Ben was incarcerated again in October 2007. The record is unclear as to the length of this incarceration. He was released from jail on March 3, 2008, but this was apparently from a later, separate incarceration. His testimony during the motion for continuance suggested that he went into OCS in January 2008 for an assessment and understood that OCS would help him get into treatment. In March 2008, several days Before ...

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